Exhibit 1.3
COLONIAL PROPERTIES TRUST
(an Alabama real estate investment trust)
PLACEMENT AGENCY AGREEMENT
Dated: February 25, 2002
COLONIAL PROPERTIES TRUST
(an Alabama real estate investment trust)
PLACEMENT AGENCY AGREEMENT
February 25, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Colonial Properties Trust, an Alabama real estate investment trust (the
"Company"), and Colonial Realty Limited Partnership, a partnership organized
under the laws of the State of Delaware of which the Company is the sole general
partner (the "Operating Partnership"), confirms their agreement with ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"
or the "Placement Agent"), to act as exclusive placement agent for the Company
with respect to the issue and sale by the Company to, and the purchase by, ▇▇▇▇▇
& Steers Quality Income Realty Fund, Inc., a Maryland corporation (the "Fund"),
of a yet to be determined amount of common shares of beneficial interest of the
Company (the "Common Shares" or the "Securities").
It is contemplated that the Securities will be issued by the Company to
the Fund in an aggregate principal amount anticipated to be approximately
$10,000,000. In acting as the Placement Agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ will seek to place
the securities with the Fund on a reasonable best efforts basis, acting as the
Company's agent and not as a principal in the placement of the Securities.
▇▇▇▇▇▇▇ ▇▇▇▇▇ may separately engage, at its own expense and with the prior
approval of the Company, sub-agents as it may deem necessary or appropriate.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-38613) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including any related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations"), if applicable, and paragraph (b) of Rule 424
("Rule 424(b)") of the 1933 Act Regulations or (ii) if the Company has elected
to rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file
a term sheet (a "Term Sheet") in accordance with the provisions of Rule 434 and
Rule 424(b). The information included in any such prospectus or in any such Term
Sheet, as the case may be, that was omitted from such registration statement at
the time it became effective but that is deemed to be part of such registration
statement at the time it became effective, if applicable, (a) pursuant to
paragraph (b) of Rule 430A is referred to as "Rule 430A Information" or (b)
pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434 Information."
Each prospectus used before such registration statement became effective, and
any prospectus that omitted, as applicable, the Rule 430A Information or the
Rule 434 Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto,
schedules thereto, if any, and the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it became
effective and including the Rule 430A Information and the Rule 434 Information,
as applicable, is herein called the "Registration Statement." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final prospectus, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the
form first furnished to the Fund for use in connection with the offering is
herein called the "Prospectus." If Rule 434 is relied on, the term "Prospectus"
shall refer to the preliminary prospectus together with the Term Sheet and all
references in this Agreement to the date of the Prospectus shall mean the date
of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act"), which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
As used herein, the term "Subsidiary" includes majority-owned
corporations, partnerships and other entities, including the "Operating
Partnership, Colonial VRS, L.L.C., Colonial Properties Services Limited
Partnership (the "Management Partnership") and Colonial Properties Services,
Inc. (the "Management Corporation"), and includes direct and indirect
Subsidiaries, if any.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company and the
Operating Partnership. The Company and the Operating Partnership each severally
represents and warrants to the Placement Agent as of the date hereof, and as of
the Closing Time referred to in Section 2(b) hereof, and agrees with the
Placement Agent, as follows:
(i) Compliance with Registration Requirements. The Registration
Statement and the Prospectus, at the time the Registration Statement
became effective and at each time thereafter on which the Company filed
an Annual Report on Form 10-K with the Commission, complied in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations; the Registration Statement, at the time the
Registration Statement became effective and at each time thereafter on
which the Company filed an Annual Report on Form 10-K with the
Commission, did not, and at each time thereafter on which any amendment
to the Registration Statement becomes effective or the Company files an
Annual Report on Form 10-K with the Commission and at the Closing Time
(as defined in Section 2(b) of this Agreement), will not, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and the Prospectus, as of the date hereof, does
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through you expressly for use in the Registration Statement
or Prospectus.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Prospectus, at the time
they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission under the 1934 Act (the
"1934 Act Regulations"), and, when read together with the other
information in the Prospectus, at the time the Registration Statement
became effective and as of the Closing Time, did not and will not
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(iii) Independent Accountants. The accountants who
certified the financial statements and supporting schedules included or
incorporated by reference in the Registration Statement and the
Prospectus are independent public accountants as required by the 1933
Act and the 1933 Act Regulations; and there have been no disagreements
with any accountants or "reportable events" (as defined in Item 304 of
Regulation S-K promulgated by the Commission), in either case as
required to be disclosed in the Prospectus or elsewhere pursuant to
such Item 304.
(iv) Financial Statements. The historical financial
statements of the Company included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the financial
position of the Company, its consolidated Subsidiaries (as defined
herein) and the Operating Partnership as at the dates indicated and the
results of operations for the periods specified; except as otherwise
stated in the Registration Statement and the Prospectus, said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis and comply with the
applicable accounting requirements of the 1933 Act (including, without
limitation, Rule 3-14 of Regulation S-X promulgated by the Commission),
and all adjustments necessary for a fair presentation of the results
for such periods have been made; the supporting schedules included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the information required to be stated
therein; and the selected financial data (both historical and pro
forma) included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with the related
financial statements presented therein.
(v) Historical Summaries. The historical summaries of
revenue and certain operating expenses included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the revenue and those operating expenses included in such
summaries of the properties related thereto for the periods specified
in conformity with generally accepted accounting principles; the pro
forma consolidated financial statements included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the pro forma financial position of the Company and its
consolidated Subsidiaries as of the dates indicated and the results of
operations for the periods specified; and such pro forma financial
statements have been prepared in accordance with generally accepted
accounting principles applied on a basis consistent with the audited
financial statements of the Company included or incorporated by
reference in the Registration Statement and the Prospectus, the
assumptions on which such pro forma financial statements have been
prepared are reasonable and are set forth in the notes thereto, and
such pro forma financial statements have been prepared, and the pro
forma adjustments set forth therein have been applied, in accordance
with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations (including, without limitation, Regulation S-X
promulgated by the Commission), and such pro forma adjustments have
been properly applied to the historical amounts in the compilation of
such statements.
(vi) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (a)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company, and its Subsidiaries considered as one
enterprise, or any of the real property or improvements thereon owned
by either the Company or any of its Subsidiaries (each individually a
"Property" and collectively the "Properties"), whether or not arising
in the ordinary course of business, (b) no material casualty loss or
material condemnation or other material adverse event with respect to
any of the Properties has occurred, (c) there have been no transactions
entered into by the Company or any of its Subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company, and its Subsidiaries considered as one
enterprise, and (d) except for regular quarterly dividends on the
Company's Common Shares or dividends or distributions declared, paid or
made in accordance with the terms of any series of the Company's
Preferred Shares, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(vii) Good Standing of the Company. The Company has been
duly organized and is validly existing as a real estate investment
trust in good standing under the laws of the State of Alabama, with
power and authority to own, lease and operate its Properties and to
conduct its business as described in the Prospectus and to enter into
and perform its obligations under this Agreement and the Terms
Agreement and the Company is duly qualified to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or to
be in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its Subsidiaries considered as
one enterprise.
(viii) Good Standing of the Operating Partnership. The
Agreement of Limited Partnership of the Operating Partnership, as
amended and restated (the "Agreement of Limited Partnership"), has been
duly and validly authorized, executed and delivered by the Company, as
general partner of the Operating Partnership, and by the limited
partners of the Operating Partnership and is a valid and binding
agreement of the Company and such limited partners of the Operating
Partnership, enforceable in accordance with its terms, except as
limited by (a) the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
or affecting the rights or remedies of creditors or (b) the effect of
general principles of equity, whether enforcement is considered in a
proceeding in equity or at law, and the discretion of the court before
which any proceeding therefor may be brought. The Operating Partnership
has been duly formed and is validly existing and is in good standing
under the laws of the State of Delaware, has power and authority to
own, lease and operate its Properties and to conduct its business as
described in the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or to be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company,
its Subsidiaries and the Operating Partnership considered as one
enterprise.
(ix) Good Standing of Subsidiaries. Each Subsidiary of the
Company has been duly formed and is validly existing and in good
standing under the laws of the jurisdiction of its origin, has power
and authority to own, lease and operate its Properties and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or to be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company,
its Subsidiaries and the Operating Partnership considered as one
enterprise. Except as otherwise stated in the Prospectus, all of the
issued and outstanding capital stock or other ownership interests in
each such Subsidiary have been duly authorized and validly issued, are
fully paid and non-assessable and are owned by the Company, directly or
through Subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, except for
security interests granted in respect of indebtedness of the Company or
any of its Subsidiaries and described in the Prospectus.
(x) Partnership Agreements. Each of the partnership
agreements to which the Company or any of its Subsidiaries is a party
has been duly authorized, executed and delivered by the parties thereto
and constitutes the valid agreement thereof, enforceable in accordance
with its terms, except as limited by (a) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights or remedies of
creditors or (b) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be
brought; and the execution, delivery and performance of any of such
agreements by the Company or any of its Subsidiaries, as applicable,
did not, at the time of execution and delivery, and does not constitute
a breach of, or default under, the charter, by-laws, partnership
agreement (or other organizational documents) of such party or any
material contract, lease or other instrument to which such party is a
party or by which its properties may be bound or any law,
administrative regulation or administrative or court decree.
(xi) Capitalization. The authorized, issued and
outstanding capital shares of the Company is as set forth in the
applicable prospectus supplement under "Capitalization" (except for
subsequent issuances, if any, pursuant to reservations, agreements,
employee benefit plans, dividend reinvestment or stock purchase plans,
employee and director stock option or restricted stock plans or upon
the exercise of options or convertible securities referred to in the
Prospectus); and such shares have been duly authorized and validly
issued and are fully paid and non-assessable and are not subject to
preemptive or other similar rights.
(xii) Authorization and Description of Securities. The
Securities being sold pursuant to this Agreement have been duly
authorized by the Company, and such Securities have been duly
authorized for issuance and sale pursuant to this Agreement, and such
Securities, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth, will be
validly issued, fully paid and non-assessable, and the issuance of such
Securities will not be subject to preemptive or other similar rights;
and the Securities being sold conform in all material respects to all
statements relating thereto contained in the Prospectus.
(xiii) Authorization of Agreement - The Company. The Company
has full right, power and authority under its organizational documents
to enter into this Agreement and this Agreement has been duly
authorized, executed and delivered by the Company.
(xiv) Authorization of Agreement - The Operating
Partnership. The Operating Partnership has full right, power and
authority under its organizational documents to enter into this
Agreement and this Agreement has been duly authorized, executed and
delivered by the Operating Partnership.
(xv) Absence of Defaults and Conflicts. None of the
Company or any of its Subsidiaries is in violation of its charter,
by-laws, partnership agreement or other organizational documents or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company or
any of its Subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any
of its Subsidiaries is subject, except for any such violation or
default that would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its Subsidiaries considered as one
enterprise, and the execution, delivery and performance of this
Agreement, the applicable Terms Agreement or the applicable Warrant
Agreement, if any, and the consummation of the transactions
contemplated herein and therein and compliance by the Company and the
Operating Partnership (with respect to this Agreement), each severally,
with obligations hereunder and thereunder have been duly authorized by
all necessary corporate, trust or partnership action, and will not
materially conflict with or constitute a material breach of, or
material default under, or result in the creation or imposition of any
material lien, charge or encumbrance upon any property or assets of the
Company or any of its Subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Company or any of its Subsidiaries is a party or by which any
of them may be bound, or to which any of the property or assets of the
Company or any of its Subsidiaries is subject, nor will such action
result in any violation of the charter, by-laws, the partnership
agreement or other organizational documents of the Company or any of
its Subsidiaries, or any applicable law, administrative regulation or
administrative or court decree.
(xvi) Absence of Proceedings. There is no action, suit or
proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company
or any of its Subsidiaries threatened against or affecting the Company
or any of its Subsidiaries which is required to be disclosed in the
Prospectus (other than as disclosed therein), or which might result in
any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise, or which
might materially and adversely affect the property or assets thereof or
which might materially and adversely affect the consummation of this
Agreement, the applicable Terms Agreement, or the applicable Warrant
Agreement, if any, or the transactions contemplated herein or therein;
all pending legal or governmental proceedings to which the Company or
any of its Subsidiaries is a party or of which any property or assets
of the Company or any of its Subsidiaries is subject which are not
described in the Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not
material to the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise; and there are no contracts
or documents of the Company or any of its Subsidiaries which are
required to be filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Act Regulations which have not been so filed.
(xvii) REIT Qualification. The Company has qualified as a
real estate investment trust ("REIT") for its taxable years ended
December 31, 1996, December 31, 1997, December 31, 1998, December 31,
1999, December 31, 2000 and December 31, 2001 and the Company is
organized and operates in a manner that will enable it to qualify to be
taxed as a REIT under the Code for the taxable year ended December 31,
2002 and thereafter provided the Company continues to meet the asset
composition, source of income, shareholder diversification,
distributions, record keeping, and other requirements of the Code which
are necessary for the Company to qualify as a REIT.
(xviii) Investment Company Act. None of the Company or any of
its Subsidiaries is required to be registered as an "investment
company" under the Investment Company Act of 1940, as amended (the
"1940 Act").
(xix) Possession of Intellectual Property. The Company and
its Subsidiaries own or possess any trademarks, service marks, trade
names or copyrights required in order to conduct their respective
businesses as described in the Prospectus, other than those the failure
to possess or own would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its Subsidiaries considered as
one enterprise.
(xx) Absence of Further Requirements. No authorization,
approval, permit or consent of any court or governmental authority or
agency is necessary in connection with the consummation by the Company
or the Operating Partnership of the transactions contemplated by this
Agreement, the applicable Terms Agreement, or any Depositary Agreement,
except such as have been obtained or as may be required under the 1933
Act or the 1933 Act Regulations, state securities laws, real estate
syndication laws or under the rules and regulations of the National
Association of Securities Dealers, Inc.
(xxi) Possession of Licenses and Permits. The Company and
its Subsidiaries possess such certificates, authorizations or permits
issued by the appropriate state, federal or foreign regulatory agencies
or bodies necessary to conduct their respective businesses as described
in the Prospectus, other than those the failure to possess or own would
not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its Subsidiaries considered as one enterprise, and
neither the Company nor any of its Subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such
certificate, authority or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company
and its Subsidiaries considered as one enterprise.
(xxii) Title to Property. (A) Except as otherwise disclosed
in the Prospectus and except as would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise: (a) except for the portions
of Macon Mall, Bel Air Mall and Fashion Square Mall that are leased by
the Company pursuant to long-term subordinated ground leases, the
Company or its Subsidiaries have good and marketable title in fee
simple to all real property and improvements described in the
Prospectus as being owned in fee and, at the Closing Time, the Company
and its Subsidiaries will have good and marketable title in fee simple
to all real property and improvements as described in the Prospectus as
being owned in fee; (b) all liens, charges, encumbrances, claims or
restrictions on or affecting the real property and improvements owned
by the Company or any of its Subsidiaries which are required to be
disclosed in the Prospectus are disclosed therein; (c) none of the
Company or any of its Subsidiaries, or to the knowledge of the Company,
any lessee of any portion of the real property or improvements owned by
the Company or any of its Subsidiaries, is in default under any of the
leases pursuant to which the Company or any of its Subsidiaries leases
such real property or improvements, and the Company and its
Subsidiaries know of no event which, but for the passage of time or the
giving of notice, or both, would constitute a default under any of such
leases; (d) all the real property and improvements owned by the Company
or its Subsidiaries comply with all applicable codes and zoning laws
and regulations; and (e) the Company and its Subsidiaries have no
knowledge of any pending or threatened condemnation, zoning change or
other proceeding or action that would in any manner affect the size of,
use of, improvements on, construction on, or access to any of the real
property or improvements owned by the Company, any of its Subsidiaries
or the Operating Partnership.
(xxiii) Environmental Laws. Except as otherwise disclosed in
the Prospectus, each of the Company and the Operating Partnership has
no knowledge of: (a) the unlawful presence of any hazardous substances,
hazardous materials, toxic substances or waste materials (collectively,
"Hazardous Materials") on any of the Properties or (b) any unlawful
spills, releases, discharges or disposal of Hazardous Materials that
have occurred or are presently occurring on or from the Properties as a
result of any construction on or operation and use of the Properties,
which presence or occurrence would have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company, its Subsidiaries and the
Operating Partnership considered as one enterprise; and in connection
with the construction on or operation and use of the Properties, each
of the Company, and the Operating Partnership has no knowledge of any
material failure to comply with all applicable local, state and federal
environmental laws, regulations, ordinances and administrative and
judicial orders relating to the generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous Materials
that could have a material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or business prospects
of the Company, its Subsidiaries and the Operating Partnership
considered as one enterprise.
(xxiv) Title Insurance. The Company and its Subsidiaries
have adequate title insurance on each Property owned in fee by the
Company or its Subsidiaries.
(xxv) Absence of Regulation M Violation. None of the
Company or any of its Subsidiaries, or any of the officers, directors,
trustees or partners thereof has taken nor will any of them take,
directly or indirectly, any action resulting in a violation of
Regulation M under the 1934 Act or designed to cause or result in, or
which has constituted or which reasonably might be expected to
constitute, the stabilization or manipulation of the price of the
Securities or facilitation of the sale or resale of the Securities.
(xxvi) Registration Rights. There are no persons with
registration or other similar rights to have any securities registered
pursuant to the Registration Statement.
(b) Officers' Certificates. Any certificate signed by any officer of the
Company in such capacity or as indirect general partner of the
Operating Partnership and delivered to the Placement Agent or to
counsel for the Placement Agent shall be deemed a representation and
warranty by the Company or the Operating Partnership, as the case may
be, to the Placement Agent as to the matters covered thereby on the
date of such certificate.
SECTION 2. Placement Agent Fees.
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(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to pay ▇▇▇▇▇▇▇ ▇▇▇▇▇ a fee (the "Fee"), based upon the aggregate amount
of Securities sold, as calculated in accordance with the provisions of this
Section for its services pursuant to this Agreement. The Fee will equal to
5.125% of the purchase price of all Securities sold to the Fund pursuant to this
Agreement.
(b) On the date in which the Fund purchases the Securities from
the Company in accordance with this Agreement (the "Closing Time"), the Company
shall pay the Fee to the Placement Agent in cash by wire transfer of immediately
available funds to a bank account designated by the Placement Agent.
SECTION 3. Covenants of the Company and the Operating Partnership.
Each of the Company and the Operating Partnership covenants with the Placement
Agent as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company will comply with the requirements of Rule 430A or Rule
434, as applicable, and will notify the Placement Agent immediately, and confirm
the notice in writing, (i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the Prospectus or any
amended Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule 424(b)
was received for filing by the Commission and, in the event that it was not, it
will promptly file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the
1934 Act Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Prospectus. If at any
time when a prospectus is required by the 1933 Act to be delivered in connection
with sales of the Securities, any event shall occur or condition shall exist as
a result of which it is necessary, in the opinion of counsel for the Placement
Agent or for the Company, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement or the Prospectus comply with such requirements, and
the Company will furnish to the Placement Agent such number of copies of such
amendment or supplement as the Placement Agent may reasonably request.
(c) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Placement Agent, to qualify the Securities under the
applicable securities laws and real estate syndication laws of such states and
other jurisdictions of the United States as the Placement Agent may designate.
In each jurisdiction in which the Securities have been so qualified, the Company
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for so long as may be
required for the distribution of the Securities; provided, however, that the
Company shall not be obligated to (A) qualify as a foreign entity in any
jurisdiction where it is not so qualified, (B) file any general consent to
service of process, or (C) take any action that would subject it to income
taxation in any such jurisdiction.
(d) Rule 158. The Company will make generally available to its
security holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve
month period beginning not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in such Rule 158) of the
Registration Statement.
(e) Reporting Requirements. The Company, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to
Section 13, 14 or 15 of the 1934 Act within the time periods required by the
1934 Act and the 1934 Act Regulations.
(f) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(g) REIT Qualification. The Company will use its best efforts to
meet the requirement to qualify as a "real estate investment trust" under the
Code for the year ending December 31, 2002.
(h) Listing. The Company will use its best efforts to
effect the listing of the Securities on the New York Stock Exchange.
(i) Rule 462(b) Registration Statement. If the Company elects to
rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement, and the Company shall at
the time of filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the 1933 Act.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) and each amendment thereto, (ii)
the preparation and delivery to the Placement Agent of this Agreement and such
other documents as may be required in connection with the offering, purchase,
sale, issuance or delivery of the Securities, (iii) the fees and disbursements
of the Company's counsel, accountants and other advisors, (iv) the qualification
of the Securities under securities laws in accordance with the provisions of
Section 3(c) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Placement Agent in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (v) the printing and delivery to the Placement Agent of copies of each
of the preliminary prospectus, Prospectus and any amendments or supplements
thereto, (vi) the fees and expenses of any transfer agent or registrar for the
Securities, and (vii) the fees and expenses incurred in connection with the
listing of the Securities on the New York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by
the Placement Agent in accordance with the provisions of Section 5 or Section
9(a), the Company shall reimburse the Placement Agent for all of its
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Placement Agent.
SECTION 5.Conditions of Placement Agent's Obligations. The obligations
of the Placement Agent hereunder are subject to the accuracy of the
representations and warranties of the Company and the Operating Partnership
contained in Section 1 hereof or in certificates of any officer or authorized
representative of the Company or the Operating Partnership delivered pursuant to
the provisions hereof, to the performance by the Company or the Operating
Partnership of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time, no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Placement Agent. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Placement
Agent shall have received the favorable opinion, dated as of Closing Time, of
(i) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the Company and the Operating
Partnership, in form and substance satisfactory to counsel for the Placement
Agent, to the effect set forth in Exhibit A hereto; and (ii) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇, P.C., special real estate counsel for the Company in form and substance
satisfactory to counsel for the Placement Agent, to the effect set forth in
Exhibit B hereto.
(c) Opinion of Designated Underwriter's Counsel. At Closing Time,
the Placement Agent shall have received the favorable opinion, dated as of
Closing Time, of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, designated underwriter's
counsel for the Company, with respect to the matters set forth in (i), (vii) to
(ix), inclusive, (x) and (xi) of Exhibit A hereto.
In giving their opinions required by subsections (b) and (c),
respectively, of this Section, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇,
P.C. and Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP shall each additionally state that
nothing has come to their attention that causes them to believe that the
Registration Statement (except for financial statements and schedules and other
financial data, as to which counsel need make no statement) at the time it
became effective (or, if an amendment to the Registration Statement or an Annual
Report on Form 10-K has been filed by the Company with the Commission subsequent
to the effectiveness of the Registration Statement, then at the time such
amendment becomes effective or at the time of the most recent filing of such
Annual Report, as the case may be), contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial data, as to which counsel need make
no statement), at Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. shall additionally state that
nothing has come to their attention that causes them to believe that other than
as set forth in the Prospectus, to such counsel's knowledge, (x) based on an
officer's certificate from the Company, there are any legal or governmental
proceedings pending to which the Company, the Operating Partnership, the
Management Partnership or the Management Corporation is a party, or of which any
Property is the subject, which, if determined adversely to the Company, the
Operating Partnership, the Management Partnership or the Management Corporation,
would reasonably be expected to have a material adverse effect on the
consolidated financial condition or results of operations of the Company and its
Subsidiaries, considered as one enterprise, or that any such proceedings are
threatened by governmental authorities or others, and (y) there are any
contracts entered into by the Company or the Operating Partnership after July
30, 1997 that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are not
described or referred to therein or so filed (except for financial statements
and schedules and other financial data, as to which counsel need make no
statement). In giving their opinions required by subsections (b) and (c),
respectively, of this Section, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇,
P.C. and Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP may rely, (1) as to all matters of fact,
upon certificates and written statements of officers and employees of and
accountants for the Company and Operating Partnership, (2) with respect to
certain other matters, upon certificates of appropriate government officials in
such jurisdiction, and (3) as to matters involving the laws of the State of
Alabama, upon the opinion of Sirote & Permutt, P.C. in form and substance
satisfactory to counsel for the Placement Agent.
(d) Opinion of Alabama Counsel. At Closing Time, the
Placement Agent shall have received the favorable opinion, dated as of
Closing Time, of Sirote & Permutt, P.C., Alabama counsel for the Company and the
Operating Partnership, relating to matters of Alabama law.
(e) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, the Operating Partnership, and the
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Placement Agent shall have received a
certificate of the President or a Vice President of the Company, on behalf of
the Company and as general partner of the Operating Partnership, and of the
chief financial or chief accounting officer of the Company, on behalf of the
Company and as general partner of the Operating Partnership, dated as of Closing
Time, to the effect that (i) there has been no such material adverse change and
(ii) the representations and warranties in Section 1(a) hereof are true and
correct with the same force and effect as though expressly made at and as of
Closing Time.
(f) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Placement Agent shall have received from
PricewaterhouseCoopers LLP a letter dated such date, in form and substance
satisfactory to the Placement Agent, containing statements and information of
the type ordinarily included in accountants' "comfort letters" with respect to
the financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(g) Bring-down Comfort Letter. At Closing Time, the Placement
Agent shall have received from PricewaterhouseCoopers LLP a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (d) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(h) Approval of Listing. At Closing Time, the Securities shall
have been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
(i) Additional Documents. At Closing Time counsel for the
Placement Agent shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the Placement Agent
and counsel for the Placement Agent.
(j) Termination of Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Placement Agent by notice to the Company
at any time at or prior to Closing Time and such termination shall be without
liability of any party to any other party except as provided in Section 4.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Placement Agent. Each of the Company and
the Operating Partnership agrees, jointly and severally, to indemnify and hold
harmless the Placement Agent and each person, if any, who controls the Placement
Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act, and any director, officer, employee or affiliate thereof as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that
neither the Company nor the Operating Partnership shall be required
under this subsection (a)(i) to indemnify the Placement Agent with
respect to any preliminary prospectus to the extent that any loss,
claim, damage or expense of the Placement Agent results solely from an
untrue statement of a material fact contained in, or the omission of a
material fact from, such preliminary prospectus which untrue statement
or omission was corrected in the Prospectus and which corrected
Prospectus was furnished by the Company to the Placement Agent but was
not sent or given by the Placement Agent to the purchaser of the
Securities at or prior to the written confirmation of such sale.
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by the Placement Agent),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Placement Agent expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
(b)Indemnification of Company, Directors and Officers. The Placement Agent
severally agrees to indemnify and hold harmless the Company and the Operating
Partnership, each person, if any, who controls the Company or the Operating
Partnership within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, and any officer, director, trustee, employee or affiliate thereof,
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if applicable,
or any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by the Placement Agent expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected by the Placement
Agent, and, in the case of parties indemnified pursuant to Section 6(b) above,
counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Operating Partnership on the one hand and the Placement Agent on the other hand
from the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Operating Partnership on the one hand and of the Placement Agent on the other
hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Operating
Partnership, on the one hand, and the Placement Agent, on the other hand, in
connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the Fee received by the Placement Agent.
The relative fault of the Company and the Operating Partnership on the
one hand and the Placement Agent on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Operating Partnership
or by the Placement Agent and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Operating Partnership and the Placement Agent agree
that it would not be just and equitable if contribution pursuant to this Section
7 were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Placement Agent
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Securities placed by it exceeds the amount of any
damages which the Placement Agent has otherwise been required to pay in respect
of such losses, claims, damages and expenses.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls the
Placement Agent within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as the Placement
Agent, and each trustee of the Company, each officer of the Company who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company or the Operating
Partnership. For purposes of this Section 7, the Company and the Operating
Partnership shall be deemed one party, jointly and severally liable for any
obligations hereunder.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or the Operating
Partnership submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the
Placement Agent or controlling person, or by or on behalf of the Company or the
Operating Partnership, and shall survive delivery of the Securities to the Fund.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Placement Agent may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and the
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Placement Agent, impracticable or
inadvisable to market the Securities or to enforce contracts for the sale of the
Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the New York Stock Exchange or the American
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or a material disruption has occurred
in commercial banking or securities settlement or clearance services in the
United States, or (iv) if a banking moratorium has been declared by either
Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7, 8 and 12 shall survive such termination and remain in full force and
effect.
SECTION 10. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Placement
Agent shall be directed to the Placement Agent at North Tower, 4 World Financial
Center, New York, New York 10080, attention of ▇▇▇▇ ▇. Case III, Managing
Director; notices to the Company and the Operating Partnership shall be directed
to it at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇,
attention: Chief Financial Officer.
SECTION 11. Parties. This Agreement shall each inure to the benefit of and
be binding upon the Placement Agent, the Company and the Operating Partnership
and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Placement Agent, the Company and the Operating
Partnership and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Placement Agent and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Placement Agent shall be deemed
to be a successor by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. UNLESS OTHERWISE EXPLICITLY
PROVIDED, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 13. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Placement Agent, the Company and the Operating Partnership in
accordance with its terms.
Very truly yours,
COLONIAL PROPERTIES TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Chief Financial Officer
and Secretary
COLONIAL REALTY LIMITED PARTNERSHIP,
the Operating Partnership
By: Colonial Properties Trust
(its general partner)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Chief Financial Officer
and Secretary
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇ ▇. Case III
--------------------------
Authorized Signatory
EXHIBIT A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Company has been duly organized and is validly existing as a real estate
investment trust under the laws of the State of Alabama. Based solely on the
certificates of public officials, the Company is authorized to transact business
in the States of Florida and Georgia as of the dates of the respective
certificates specified in such opinion.
(ii) The Management Corporation was incorporated and is validly existing under
the laws of the State of Alabama. The Management Corporation is authorized to
transact business in the State of Florida as of the date of the certificate
specified in such opinion.
(iii) Each of the Operating Partnership and the Management Partnership was
formed and is validly existing as a partnership under the laws of the State of
Delaware as of the dates of the respective certificates specified in such
opinion. Each of the Operating Partnership and the Management Partnership is in
good standing under the laws of the State of Delaware as of the dates of the
respective certificates specified in such opinion. Based solely on certificates
of public officials, each of the Operating Partnership and the Management
Partnership is registered to do business in Alabama, and the Operating
Partnership is authorized to transact business in the States of Florida and
Georgia as of the dates of the respective certificates specified in such
opinion. The Management Partnership is authorized to transact business in the
State of Florida as of the date of the certificate specified in such opinion.
(iv) Each of the Company and the Management Corporation has full trust or
corporate power to own, lease or operate the Properties and to conduct its
business as described in the Prospectus. The Management Partnership has the
partnership power and partnership authority under its partnership agreement and
the Delaware Revised Uniform Limited Partnership Act (the "Delaware Act") to
conduct its business as described in the Prospectus. The Operating Partnership
has the partnership power and partnership authority under the Agreement of
Limited Partnership and the Delaware Act to own, lease and operate the
Properties and to conduct its business as described in the Prospectus.
(v) The Company has authorized capital shares under the caption "Capitalization"
in the Prospectus, and all of the issued shares of beneficial interest of the
Company as set forth in the Prospectus have been duly authorized and, assuming
receipt of consideration therefor as provided in the resolutions authorizing
issuance thereof of the Company's Board of Trustees, are validly issued, fully
paid and non-assessable. All of the issued shares of capital stock of the
Management Corporation have been duly authorized and, assuming receipt of
consideration therefor as provided in the applicable resolutions authorizing the
issuance thereof of the board of directors of each such subsidiary, are validly
issued, fully paid and non-assessable. All of the outstanding partnership
interests of the Operating Partnership and the Management Partnership have been
authorized for issuance, are validly issued and, assuming receipt of the
consideration therefor as provided in the respective partnership agreements and
any resolutions authorizing issuance thereof, are fully paid.
(vi) Except as set forth in the Prospectus, to such counsel's knowledge, there
are no preemptive or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any Securities pursuant to the
Company's declaration of trust or the Company's by-laws or any agreement or
other instrument to which the Company is a party.
(vii) This Agreement has been duly authorized, executed and delivered on behalf
of the Company.
(viii) This Agreement has been duly authorized, executed and delivered by the
Operating Partnership.
(ix) The issuance and sale of the Securities to be purchased by the Fund have
been duly and validly authorized by all necessary corporate action on the part
of the Company; and such Securities, when issued and delivered by the Company in
accordance with the provisions of this Agreement against payment of the
consideration, will be validly issued, fully paid and non-assessable.
(x) The Registration Statement became effective under the 1933 Act as of the
date specified in such opinion, the required filing of the Prospectus pursuant
to Rule 424 of the 1933 Act Regulations has been made in the manner and within
the time period required by Rule 424(b), and, to such counsel's knowledge, no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose is pending or threatened by the
Commission.
(xi) The Registration Statement and the Prospectus, excluding the documents
incorporated by reference therein, as of their respective effective or issue
dates (other than the financial statements and supporting schedules included
therein or omitted therefrom, and other financial information and data included
therein or omitted therefrom, as to which such counsel need not express an
opinion) complied as to form in all material respects with the requirements of
the 1933 Act and the rules and regulations thereunder.
(xii) The documents incorporated by reference in the Prospectus (other than the
financial statements and supporting schedules and other financial information
and data included therein or omitted therefrom, as to which such counsel need
not express an opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material respects
with the requirements of the 1934 Act and the rules and regulations promulgated
thereunder.
(xiii) The Company has been organized and has operated in conformity with the
requirements for qualification as a real estate investment trust ("REIT") under
the Code and the Company's proposed method of operation and capital structure
(as described in a certain management letter received from the Company, the
Prospectus and in the Prospectus Supplement) will enable it to continue to meet
the requirements for qualification and taxation as a REIT under the Code. The
discussion in the Prospectus under the caption "Federal Income Tax
Considerations," to the extent that it purports to describe provisions of the
Code, is correct in all material respects.
(xiv) The statements contained in the Prospectus under the heading "Description
of Common Shares of Beneficial Interest," insofar as they describe Alabama
statutory law governing real estate investment trusts organized under the laws
of the State of Alabama, constitute a fair summary thereof.
(xv) The Securities conform in all material respects to the description thereof
contained in the Prospectus. The form of certificate used to evidence the
Securities complies in all material respects with all applicable statutory
requirements under the laws of the State of Alabama.
(xvi) The execution, delivery and performance as of the date hereof by the
Company and the Operating Partnership of the Placement Agency Agreement do not
(i) result in a breach of or a default under any of the agreements filed as
Exhibits 10.1, 10.2.1, 10.2.2, 10.2.3, 10.2.4, 10.2.5, 10.2.6, 10.2.7, 10.2.8,
10.2.9, 10.2.10, 10.2.11, 10.2.12, 10.2.13, 10.5, 10.13 and 10.14 to the
Company's Annual Report on Form 10-K for the year ended December 31, 2000, (ii)
violate the provisions of the declaration of trust, articles of incorporation,
charter, partnership agreement or by-laws of the Company, the Operating
Partnership, the Management Partnership or the Management Corporation, or (iii)
to such counsel's knowledge, violate any order, statute, rule or regulation of
any federal or Delaware or Alabama court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of the
Properties. The foregoing opinion shall not be deemed to address any federal
securities law matters specifically covered elsewhere in such counsel's opinion
letter. Except for the registration of the Securities under the 1933 Act and
such filings, consents, approvals, authorizations, registrations or
qualifications as have been made or obtained prior to the date of such counsel's
opinion, or may be required under the 1934 Act, the 1940 Act and applicable
state securities laws (as to which such counsel need not express an opinion) in
connection with the purchase and distribution of the Securities, no consent,
approval, authorization or order of, or filing or registration with, the
Commission or any Delaware or Alabama court or governmental agency or body is
required to be obtained or made by the Company for the execution, delivery and
performance of the Placement Agency Agreement by the Company and the Operating
Partnership, and the consummation of the transactions contemplated thereby.
(xvii) Neither the Company nor any of its Subsidiaries is an "investment
company" as such term is defined in the 1940 Act.
EXHIBIT B
FORM OF OPINION OF COMPANY'S SPECIAL REAL ESTATE COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The issuance and sale of the Shares being delivered on such Date of
Delivery by the Company and the compliance by the Company and the Operating
Partnership with all the provisions of this Agreement and the consummation
of the transactions contemplated hereby did not and will not result in a
breach or violation of any of the terms of provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any of the Properties or any other properties or assets
of the Company or any of its Subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
known to such counsel to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound or to
which any of the Properties is subject.
(ii) The descriptions of or references to any contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments described or referred
to in the Registration Statement or the Prospectus or to be filed as
exhibits thereto other than those described or referred to therein or filed
as exhibits thereto, are correct in all material respects, and, to the best
of their knowledge and information, no default exists in the due
performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument so described, referred to or
filed which would have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its Subsidiaries considered as one enterprise.